Morning Ethics Warm-Up, 4/16/2018: The Integrity Edition

Good Morning!

1. James Comey, Cognitive Dissonance Dunce. The anti-Trump obsessed won’t be able to see it, but rogue ex-FBI director James Comey is doing an immense favor for President Trump and Republicans by single-handedly framing his campaign against the man who, it is increasingly obvious, correctly fired him (as Hillary Clinton would have done even faster) as that of a classic vengeful disgruntled employee and nothing more, or better. Even Time op-ed writer Charles Blow, whose every column since the election has been some paraphrasing of “I hate Donald Trump,” was forced to observe that Comey is an especially dislikable foe (as is Blow himself). The sheer number of loathsome Trump-bashers has a natural Cognitive Dissonance Scale effect that the President’s critics can’t seem to fathom.

Normal, fair-minded people whose natural instinct is to run from the likes of Nancy Pelosi, Ted Lieu, Hillary Clinton, David Hogg, Joy Reid, Bill Maher, James Comey, Robert DeNiro, Alec Baldwin, Stormy Daniels and the rest will find themselves, almost unconsciously, siding with the President rather than this basket of deplorables, because, you see, he is the President, and who wants to be identified with that crew?

In his ABC interview, which successfully marked Comey as Just Another Trump-Deranged Resistance Warrior, he actually said that Trump was “morally unfit” to be President. First of all, it is the electorate, not James Comey, that decides who is morally fit to be President. Comey’s assessment is no more or less valid than that of anyone else. Second, the statement is ridiculous on its face. If Comey had an interviewer with any knowledge of Presidential character and the history of the office, plus the wit and integrity to expose an ignorant opinion when one is broadcast coast to coast, he would have been asked..,

Was Thomas Jefferson morally fit to be President? Has Donald Trump kept his wife’s sister as a concubine and slave? Was Andrew Jackson morally fit to be President? Has Donald Trump killed anyone in an illegal duel? Was Grover Cleveland morally fit to be President? Did Donald Trump ever have a woman committed to an institution to silence her about their sexual relationship? Was Woodrow Wilson morally fit to be President? Has Donald Trump endorsed the Klu Klux Klan? Was Franklin Roosevelt morally fit to be President? Has President Trump ordered U.S. citizens into prison camps? Was Richard Nixon morally fit to be President? LBJ? Bill Clinton?

The Presidency is self-defined by its past occupants, and “moral fitness” is not a characteristic that comes to mind when considering what qualities are identified with successful, popular or effective Presidents.

2. Whither the ACLU? Alan Dershowitz has authored a searing attack on the ACLU’s lack of integrity demonstrated by its failing to condemn the Justice Department’s raid on lawyer Michael Cohen’s home and office. He writes in part,

Sure, it occasionally defends a Nazi or Klansman as an easy pretend-show of its willingness to protect the free speech of the most despicable racists. But it has been scandalously silent when it comes to the real current threats to civil liberties and free speech, especially on university campuses where the hard left demands suspension of free speech and due process rights for those with whom it disagrees.

Now, since the election of President Trump, it has sunk to a new low, becoming a cheerleader for the violation of the civil liberties of those on the other side of the political spectrum. Consider the recent raid on the law office and hotel room of Trump’s lawyer, Michael Cohen. In that raid, it appears as if FBI agents may well have seized material protected by the lawyer/client privilege, including communications between Trump and his attorney. On the day of the raid, I said that if a similar raid had been conducted on Hillary Clinton, had she been elected and a Special Prosecutor appointed to investigate her emails, the ACLU would have been up in arms.

I condemned its doubled-standard silence. When I said that, I couldn’t possibly imagine that the ACLU would actually go out of its way to justify and defend the raid, even before all the facts were known. But that is exactly what it has done….Imagine that the search was of your lawyer’s office, or your doctor’s office, or your spouse’s computer, or the rectory of your priest. And imagine that government agents got to read the most intimate privileged communications between you, your lawyer, your doctor, your spouse or your priest. Would it be enough that the government (and the ACLU) told you that the information wouldn’t be used in a criminal case against you? Would you believe that your civil liberties had been violated as soon as government agents read this material? Would you trust government agents not to leak embarrassing information about your conversations, especially if you were a controversial public figure?

The ACLU does not address any of these questions, because the person whose lawyer’s office was searched was Donald Trump. And virtually every contributor to the ACLU voted against Trump, as I did.

I find it fascinating that Dershowitz, a genuine legal rock-star who in the past has been a welcome guest on CNN and the major networks. and has seen his opinion columns published in the New York Times and the Washington Post, is now relegated to conservative publications like the Washington Examiner and Fox News.

3. The Legacy of Pete Wales. I attended a memorial service this morning for a friend and teacher, Prof. Heathcote Woolsey Wales, better known as Pete, of Georgetown University Law Center. What all of the speakers mentioned, and what I had myself observed with respect and wonder, was how marvelously this vigorous, active man had faced death after being diagnosed with amyotrophic lateral sclerosis, Lou Gehrig’s Disease, six years ago.

As one of his friends said, he did not go gentle into that good night, but he didn’t rage against the dying of the light either. Pete was not bitter, or angry, or depressed. When he could no longer lecture, he wrote, and worked on committees and boards. When he could no longer ski, he went down snowy hills in a chair attached to skis. When his arms wouldn’t work sufficiently to use a wheelchair, he zipped around cities in a motorized scooter. Pete’s son said that his father had always maintained that wherever he was in his life was the best time of his life, because accumulated wisdom and experience made daily events and wonders easier to appreciate. When Pete received the devastating diagnosis of ALS, his son feared that the blow would shatter his positive outlook and optimism. Incredibly, his son told us, it did not. “I honestly believe that in many ways the last six years of Dad’s life were the best years,” he said.

The true test of integrity is when one’s stated values and principles are tested by tragedy. Many, indeed most of us fail that test. Pete Wales demonstrated for those who knew him well, like his family and close friends, and those who knew him less well, like his student and colleagues, that a life lived well can be crowned by an acceptance of death with dignity, grace and brio.

What would satisfy you? For the FBI to publicly reveal what their justification for the raid was immediately, even if that might jeopardize their investigation? For someone in the FBI to leak that information?

I can understand taking a “wait and see” approach here, but Dershowitz is asking the ACLU to condemn the FBI before we even have the facts. That’s not reasonable.

“What would satisfy you? For the FBI to publicly reveal what their justification for the raid was immediately, even if that might jeopardize their investigation? For someone in the FBI to leak that information?”

Look, the FBI is supposed to reveal what their justification is BEFORE conducting the raid, so I don’t really think they can bitch about being asked about it afterwards. As to the ‘jeopardization” of their investigation? The only way that could jeopardize the investigation is if it signaled someone to destroy evidence (Like… say… wiping a computer server, not with a cloth). Seeing as how the raid has already occurred, and seeing as how the FBI has all the documents… I’m not particularly swayed by that argument. I mean really… What do you think it at danger of happening?

“I can understand taking a “wait and see” approach here, but Dershowitz is asking the ACLU to condemn the FBI before we even have the facts. That’s not reasonable.”

I’ll scratch tender parts of my body off with a rusty SOS pad before allowing a progressive to dictate what is “reasonable” to me, thank you very much. The reason that people are criticizing this situation is that unlike most of the things progressives assert have never happened before, this really never has. It’s bizarre in ways I think law students will be reading about for years to come, and for the ACLU…. Let me write that out: The American Civil Liberties Union…. To err on the side of curtailing liberties because the subject that is having his liberties curtailed is particularly odious isn’t just a failure to “wait and see”… it’s the most hypocritical of abdications of duty I can think of. “Wait and See” would have been better than “Yeah, do it, comrade, if you have nothing to hide, you have nothing to worry about”.

Honestly, I can’t help thinking Chris is a paid DNC operative simply spouting talking points he receives every hour or so. The reliability of his positions and their rapidity and viciousness aren’t explainable in any other way. If he’s really a teacher, what are his students doing all day? Watching movies?

I left a position in education because groupthink is a prerequisite for successfully operating in today’s academic circles.

Much of public education has become a quagmire of linear thinking. No one questions the collective preferred narrative for if they do they will become a pariah in their group culture.

I believe Chris is unwilling to see Dershowitz’s civil liberty argument against the raid because it was used against someone he perceives as a threat to the public good. This is not much different when others condemn the system that lets off heinous criminals due to a “legal technicality”.

In my opinion most people like and approve of civil liberty indiscretions by law enforcement when they impact the bad guy but scream loudly when such indiscretions threaten their own liberty and privacy.

As I said, I left public education when it became apparent to me that my faculty peers could often not see the forest for the trees because they were blinded by institutional bias.

Coulda fooled me, Chris (Marscher). Hey, I taught seventh grade for a year and ninth and eleventh grades for a year and a half before bailing and going to law school to provide for my children. But I taught in Catholic schools. I don’t really get public schools and wouldn’t touch them with a ten foot pole. Sent my kids to private schools and I worry about my grandkids being in public schools. I keep thinking I should be writing checks to send them so someplace else.

Look, the FBI is supposed to reveal what their justification is BEFORE conducting the raid

Can you provide evidence that the FBI has any duty to reveal their justification for raids to the public?

The reason that people are criticizing this situation is that unlike most of the things progressives assert have never happened before, this really never has.

I’m pretty sure that isn’t true; the Supreme Court has ruled that attorney-client privilege doesn’t apply if the lawyer and client have engaged in criminal activity in the course of their work together, and I would think for that to happen there’d have to be cases just like this one. The unprecedented part here is that we’re talking about a lawyer for the President of the United States (and, apparently, Sean Hannity as I just learned–wow). But I think that’s more a reflection on the current president than on anyone else.

It wasn’t a shift at all. Read my original comment–my question was whether they should “publicly reveal” the justification for the raid. Yes, I agree they have to provide the justification eventually. I think they are allowed to not do so immediately if doing so would interfere with the investigation.

How it might interfere with the investigation is obvious. The FBI shouldn’t name the specific crime they suspect the president’s lawyer (and possibly the president) of committing before they have a chance to look through the documents collected in the raid. If they did you’d be criticizing them for that.

The shift was in coupling “duty” with “public”. It doesn’t really matter, I got there.

This is like asserting that Trump was encouraging the Russian government to hack the DNC by joking that the Russians should release the Emails she deleted, when in reality, the server everyone was talking about was quarantined in an FBI basement. And any hacking that might have happened would have already had to have happened six months prior.

There is no universe where actually showing the justification for that warrant should harm a case. Hell, there is no universe where the FBI would actually conduct a raid that wasn’t in the very twilight hours of their investigation. The investigation is all but done, and I have no idea why you’re carrying all that water.

1. That previous presidents do not live up to our current moral standards does not invalidate the point that our current president does not live up to our current moral standards. Nor does the fact that some did not even live up to the moral standards of their own times invalidate that point. And if moral fitness has not been a criteria for presidents in the past, that does not mean it shouldn’t be a criteria now. This is merely whataboutism. “Morally unfit” remains an apt descriptor for President Trump.

2. Dershowitz gives no evidence for the claim that the raid violates attorney-client privilege, because there is none. I refer you again to Popehat. It is nearly impossible that this raid happened without sufficient evidence that Cohen’s communications with Trump involved some sort of criminal activity. Attorney-client privilege doesn’t cover that, as you know. It is likely the legal justification for the raid won’t be revealed for some time, but until that happens, why would you want the ACLU to attack the FBI for what is most likely a perfectly legal and constitutional raid without having the facts?

I suspect the reason Dershowitz is typically only cited in conservative blogs these days is because he has decided that his schtick is now “Liberal lawyer who exists solely so that conservatives can point to a ‘liberal lawyer’ who agrees with them.” If he’s published anything of note in the past few years that doesn’t fit that schtick, I’m unaware of it. The same goes for Turley, though he’s a bit less overt about it.

Chris: Do you agree Hillary Clinton would be morally unfit, too? After all she was under investigation and, I believe, still is. In fact, she clearly violated the law multiple times to the detriment of US national security. Since neither has been prosecuted, yet, would you agree?

It also appears to be pretty inconsistent with past ACLU briefings on the AC privilege:

“This uncertainty renders the privilege worthless. “[I]f the purpose of the attorney?client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications …, is little better than no privilege at all.” Upjohn, 449 U.S. at 393, 101 S. Ct. at 684. In some limited circumstances, attorney-client communications lose their privileged status pursuant to the “crime-fraud exception” to the privilege. See U.S. v. De La Jara, 973 F.2d 746, 748 (9th Cir. 1992) (“[i]n order to successfully invoke the crime-fraud exception to the attorney-client privilege, the government must make a prima facie showing that the attorney was retained in order to promote intended or continuing criminal or fraudulent activity”). However, it hardly follows from this narrow exception that the Justice Department may eavesdrop on all of a detainee’s attorney-client communications, and then determine, unilaterally and after the fact, that some of these communications fell within the crime-fraud exception.

Rather, the Supreme Court has made clear that the determination whether an attorney-client communication falls within the crime-fraud exception is to be made by courts, not prison officials or prosecutors. Indeed, even to obtain in camera review of an allegedly privileged communication to determine whether the crime-fraud exception applies, the government must first provide the court with “a factual basis adequate to support a good faith belief by a reasonable person” that in camera review may reveal evidence to establish the exception’s applicability. United States v. Zolin, 491 U.S. 554, 572, 109 S. Ct. 2619, 2631, 105 L.Ed.2d 469 (1989). This showing must be made using non-privileged evidence. Id., 491 U.S. at 574, 109 S. Ct. at 2632. See also De La Jara, 973 F.2d at 749 (district court erred by conducting in camera review of allegedly privileged communication without first requiring prosecution to make prima facie showing supporting such review). “

You’re making the case that the raid was justified. A court did approve the raid. And the Justice Department won’t see the communications until a “taint team” (no kidding) has reviewed them. Everything so far seems to be following procedure.

Perhaps, but it’s also very much worthy of criticism. I just don’t like invalid criticism.

A few things I noticed:

– They didn’t even include boilerplate language that it’s always concerning when the Feds raid a law office and start going through privileged communications.
– There’s a lot of unjustifiably strong language, especially for a case like this where there are so incredibly many unknowns. For instance, take this line: “That all of these Republican officials approved the search refutes any suggestion that it is a partisan “attack.” ”

A more honest statement would be that their approval argues against that idea.
– There’s not even boilerplate language that they’re keeping an eye on the situation.
– There’s a lot of unjustifiable certainty that the (unseen) evidence justified the search.

You usually read better than this, AC. Who said they were silent? I quoted Dershowitz as saying “When I said that, I couldn’t possibly imagine that the ACLU would actually go out of its way to justify and defend the raid, even before all the facts were known. But that is exactly what it has done…”, and the link is the statement Dershowitz was referring to.

And the ACLU, of all organizations, saying that this den of deep state cheats is operating in “good faith” is a disgrace.

For God’s sake, you KNOW Cohen is a thug. But you are so wedded to this idea that a raid on him is part of some deep state conspiracy to get Trump that you can’t even imagine that the raid happened because Cohen has used his position to commit actual crimes because that doesn’t fit your narrative of Trump victimhood.

It wouldn’t even be relevant if Cohen were an actual, literal thug. Although in this case, so far as we’ve been told, the high crime seems to be some sort of procedural violation in the course of an otherwise legal payoff.

Define “morally unfit” and don’t forget to define the basis for the moral standards you are using. The problem with morally unfit is its a wildly subjective opinion masquerading as an objective measurement. You’re assertion is no more accurate than if I said President Obama was morally unfit. By the way, the constitution says nothing about moral fitness as a requirement for the president.

Jack once wrote that Trump “literally doesn’t know what ethics are”—I don’t see that as being that much different from calling him morally unfit. (I know Jack distinguishes between morals and ethics, but most people don’t.) Let’s call Trump “ethically unfit,” then.

I don’t think Jack could say the same of most of the other presidents he mentioned. Certainly not Jefferson or Roosevelt, who spoke powerfully enough about ethics that we know they at least understood them in the abstract sense despite their personal mortal sins. This is where I think Jack’s comparisons fall apart; it is clear that Trump is unlike those others in that he doesn’t seem to believe in anything at all beyond himself, nor does he even have the capability to pretend to.

The point was, it is everyone’s loss, and his legacy everyone’s gain. Pete and I were hardly close: we were associates and colleagues. We respected each other, and helped each other, but I don’t think I ever spent an hour with him alone. I wish I had.

Jack, as regards number 3, I did not know Pete, but from what you told us, I would have liked to. Because of your description, I share your grief. I have no right to, but because his was a life I missed, I do. I know you’ve heard this before, but in time, you will recover, and will carry on. It’s what Pete would have wanted.

I’m not against throwing the book at Presidents for any and all behavior that would not be tolerated among us common folk. Presidents should be held to a higher standard, not a lower.

But this entire ordeal is such a contrast to the Hillary scandals (both in the severity of the crime and the consequence) that there’s simply no way to reconcile them together as coming from the same justice system.

And it goes from head-scratcher to outright farce when the people shouting “He cheated on his wife and paid women off! He’s unfit!” are also saying “Vote for Clinton!” and giving tearful eulogies for Ted Kennedy. These people are beyond parody.

It’s not a farce, it’s simply the pro wrestling mentality of politics, where you’re supposed to cheer for the faces and boo the heels, and your side it always the faces and the other is always the heels.

I am just struck by how much Alan Dershowitz sounds like your stereotypical ‘ignorant, right-wing hick’ of the 1980’s. Isn’t this exactly what rural, conservative America has thought about the ACLU for the last 40 years? Were they right all along?